Darley (No 3)
[2023] FedCFamC1A 126
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Darley (No 3) [2023] FedCFamC1A 126
Appeal from: Darley & Darley (No 6) [2023] FedCFamC1F 537 Appeal number: NAA 199 of 2023 File number: BRC 2317 of 2013 Judgment of: AUSTIN, harper & campton JJ Date of judgment: 9 August 2023 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant seeks leave to circumvent a vexatious litigant injunction to enable her to appeal from orders – Where injunction was previously made prohibiting the applicant from instituting proceedings under the Family Law Act 1975 (Cth) against the father or the Independent Children’s Lawyer without first obtaining leave to do so – Where the primary judge dismissed the applicant’s application to review orders of a registrar prohibiting the recording of proceedings and requiring the preparation of a Family Report – Where appeals only lie from judgments – Where an appeal from the primary judge’s order would fail for lack of merit – Where the intended appeal lacks reasonable ground and is therefore vexatious – Application dismissed. Legislation: Criminal Code Act 1995 (Cth)
Family Law Act 1975 (Cth) Pt VII, Div 6, ss 45A, 60CC, 62G, 69ZX, 102Q, 102QB, 102QE, 102QF, 102QG
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 46, 56, 69, 76
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 15.23
Cases cited: Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Darley & Darley (No 6) [2023] FedCFamC1F 537
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91
Harrell [2021] FamCAFC 119
SCVG (2020) FLC 93-967; [2020] FamCAFC 147
Yule v Junek (1978) 139 CLR 1; [1978] HCA 4
Number of paragraphs: 44 Date of hearing: Determined in chambers on the papers The Applicant Litigant in person ORDERS
NAA 199 of 2023
BRC 2317 of 2013FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DARLEY
Applicant
order made by:
AUSTIN, Harper & campton JJ
DATE OF ORDER:
9 August 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 28 July 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Darley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, HARPER & CAMPTON JJ:
This is another application by the applicant for leave to circumvent a vexatious litigant injunction to enable her appeal from an order made on 3 July 2023.
By an Application in an Appeal filed on 28 July 2023, the applicant seeks leave to file an appeal from an order made by a judge of the Federal Circuit and Family Court of Australia (Division 1) in these terms:
1. The [applicant’s] review application is dismissed.
The order had the effect of dismissing the anterior application brought by the applicant to review a decision made by a judicial registrar (“the registrar”) on 25 May 2023 within parenting proceedings being conducted under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
The application is dismissed for the following reasons.
BACKGROUND
Several years ago, on 23 August 2019, an order was made pursuant to s 102QB of the Act prohibiting the applicant from instituting proceedings against the father or the Independent Children’s Lawyer without first obtaining leave to do so under s 102QE of the Act.
The injunction was made in these terms:
1.Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) the applicant mother be prohibited from instituting proceedings against [the father] or the independent children’s lawyer, under this Act in a court having jurisdiction under this Act without first obtaining leave pursuant to s 102QE of the Act.
Fresh proceedings were later commenced by the father under Pt VII of the Act and are now listed for trial before the primary judge in late August 2023. The applicant is not precluded by the s 102QB injunction from responding to and contesting those proceedings.
The registrar conducted a directions hearing in respect of the proceedings on 25 May 2023 and made a suite of procedural orders, including:
(a)setting the proceedings down for trial in August 2023 (Order 1);
(b)prohibiting the lawyers, the parties and witnesses from recording any part of the proceedings (Order 3);
(c)setting the timetable for documents to be filed in readiness for the trial (Orders 4–7); and
(d)ordering the preparation of a family report under s 62G of the Act and making incidental orders for interviews with the Family Consultant, the inspection of documents produced under subpoena, and the inspection of the Court file (Orders 13–20).
The applicant filed an Application for Review on 15 June 2023, but seeking review of only selected orders, being the order prohibiting the recording of the proceedings (Order 3) and the orders requiring the preparation of the Family Report (Orders 13–20).
The review application was listed for hearing before the primary judge on 28 June 2023. Judgment was reserved and delivered shortly thereafter on 3 July 2023 (Darley & Darley (No 6) [2023] FedCFamC1F 537). The review application was dismissed. The reasons which accompanied the dismissal order contained this:
11.By paragraph 3 of the judicial registrar’s order all parties are prohibited from recording any part of the proceeding. The mother advanced no submissions about that order or why the mother sought a review of it. The conduct of the trial is wholly within the control of the trial judge. Prohibiting the dissemination of information otherwise captured by s 121 of the Family Law Act is also a matter for the trial judge. In the reasons of [another judge] dated 17 March 2023, his Honour expressed significant concern that the mother had filed voluminous affidavit material and other documents.
12.Yet paragraph 3 of the 25 May 2023 orders applied not only to the mother but also to all parties, their legal representatives and any witnesses in the proceeding. The mother advanced no submission in relation to paragraph 3 of the judicial registrar’s orders.
13.The mother sought the review of paragraph 13 of the order made 25 May 2023. Those related to the provision of the family report to be used in this litigation. The mother’s case in this litigation is that the family report that has been prepared should be destroyed by court order on the basis that the family consultant did not read and consider the totality of the documentation filed in this proceeding.
14.At the outset I refuse that application. The use of which the trail judge makes of the family report is squarely within the control of the trail judge. Likewise, any cross-examination about the family report, what the report writer considered, who the report writer interviewed and the issues canvassed with relevant persons is entirely within the control of the trial judge. [The trial judge] will make evidentiary rulings. [The trial judge] should address this issue in the conduct of the trial. The use made of the family report is not a proper matter for a judge dealing with a review application.
15.The father informed me that the entirety of his case in this proceeding was reposed in the family report. In those circumstances, any determination about any aspect of the family report including its admissibility is properly a matter for the trial judge, not for a judge conducting a review application.
16.The wife submitted that I needed to hear and determine contravention applications brought by her and that those applications had to be determined ahead of the trial. In debate with the mother it transpired that the mother sought orders concerning the determination of her contravention application so that she could submit to the trial judge that the husband should not be believed in his evidence in this case by reason of his being found to have contravened one or more orders previously made.
17.Having regard to the proximity of the trial, it seemed to me that questions of compliance or otherwise with orders previously made should be determined by the trial judge. The mother was emphatic in her rejection of that notion. She said she wanted the forensic advantage of going to trial with the benefit of a finding that the father had contravened one or more orders.
18.Aside from the fact that any such contravention application would require the allocation of judicial hearing time and that this proceeding is next before [the trial judge] on 5 July 2023 (two business days), I have misgivings about taking away from the trial judge the ability to assess each witness’s veracity uninfluenced by a finding on a contravention application.
19.I was unable to allocate time prior to 5 July 2023 to hear any such contravention application.
20.The mother sought recovery orders. That should be determined at trial. The trial is only a few weeks away. Further, if the mother presses for recovery orders ahead of the trial, she can bring that application before [the trial judge] on 5 July 2023.
21.In my view, the mother’s review should be dismissed. All issues in this litigation should be addressed by the trial judge.
The appeal which the applicant now wants to bring from the dismissal order is caught by the
s 102QB injunction (Harrell [2021] FamCAFC 119 at [8]; SCVG (2020) FLC 93-967 at [24]) and so the applicant needs leave to bring the appeal, the grant or refusal of which leave is governed by the provisions of ss 102QE, 102QF, and 102QG of the Act.
In support of her application for leave to institute the appeal proceedings, the applicant relied upon:
(a)her affidavit sworn on 15 June 2023 in support of her review application;
(b)her affidavit filed on 28 July 2023 in support of this application for leave to appeal; and
(c)the draft Notice of Appeal prepared by the applicant on 27 July 2023.
The loquacious narrative of alleged error and general dissatisfaction contained within the two affidavits and the draft Notice of Appeal makes it unnecessary to solicit more written submissions from the applicant before her application for leave to appeal is determined on the papers in chambers, as the Act allows (s 102QF(3) and s 102QF(4)).
DISPOSITION
Any application for leave to institute proceedings, including appellate proceedings, to override the effect of the s 102QB injunction must be supported by an affidavit containing certain information (s 102QE(3)). If the affidavit does not substantially comply with the statutory requirements, the application may be dismissed on that basis alone (s 102QF(1)). The applicant’s second affidavit is accepted to be a reasonable attempt to comply with that requirement.
However, leave to appeal should not be granted if the proposed appellate proceedings are vexatious (s 102QF(2)).
The term “vexatious proceedings” is defined as follows (s 102Q(1)):
“vexatious proceedings” includes:
(a)proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
As can been seen from sub-paragraph (c) of the definition, it is enough for the intended appeal to be characterised as vexatious if it lacks “reasonable ground”. The appeal which the applicant seeks leave to bring does lack reasonable ground and is therefore vexatious.
The order made by the primary judge on 3 July 2023, following the review hearing on 28 June 2023, accomplished two things: first, the dismissal of the applicant’s application to discharge Orders 3 and 13–20 made by the registrar; and secondly, the dismissal of her consequential application for a host of other orders.
It is convenient to deal with each aspect of the order separately.
Dismissal of the application to discharge orders
Appeals only lie from “judgments” (s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)), which are “operative judicial acts” resolving the entire justiciable dispute or at least determining the parties’ rights in some more limited way (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64).
The dismissal of the application to discharge Orders 3 and 13-20 made by the registrar cannot be properly construed as a “judgment” which is now amenable to appeal. Orders 3 and 13–20 were entirely procedural in nature and did not determine any “right” enjoyed by the applicant. Nor did the order dismissing the application to discharge those orders.
That is enough to refuse leave to appeal from that aspect of the primary judge’s order but, in any event, an appeal from the order dismissing the application to discharge those orders would certainly fail for lack of merit.
The only evidence led by the applicant in respect of Order 3, prohibiting any recording of the proceedings, was this:
18.[The registrar] is acting in excess of jurisdiction with Order 3. You cannot make an order binding non-parties to a proceedings. You also can’t infringe the Human Right of a person to protect their legal interests when they believe a crime is going to occur such as fabricating finding of facts, failing to hold perpetrators to account when they commit perjury, attempt to pervert justice, file false and misleading statements, fail to make findings of fact on admissions made that the party did do what the other party alleged.
…
20.The Invasion of Privacy Act 1971 (Qld) states that a participant to a private conversation – whether in person, via telephone or other electronic communication (e.g. Zoom, Microsoft Teams, Messenger, WhatsApp or Houseparty) – can legally record the conversation in Queensland without any knowledge, notification or consent of the other party or parties to the conversation. A “private conversation” is defined as words spoken by one person to another in circumstances indicating that those persons do not want others listening. This protection may be lost in circumstances where the participants in the conversation ought reasonably expect that their words may be overheard, recorded, monitored or listened to by some other person.
(Applicant’s affidavit filed 15 June 2023) (As per the original)
The applicant fails to appreciate that the conduct of proceedings before the Federal Circuit and Family Court of Australia (Division 1) is governed by federal legislation, which prevails over inconsistent State legislation. The FCFCA Act empowers the Chief Justice to make Rules of Court (s 76), pursuant to which power the Chief Justice promulgated the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The FCFCA Act provides that the practice and procedure of the Court must abide the Rules (s 56). Rule 15.23 of the Rules forbids anyone from recording proceedings before the Court and makes it an offence to do so. It must follow that the applicant has no right to record any part of the proceedings and Order 3 was superfluous, as the prohibition already exists under the Rules.
The evidence led by the applicant in respect of Order 13, concerning the procurement of a Family Report, comprised this:
29.I refer to Order 13 of [the Registrar’s] Orders dated 25 May 2023. [The Registrar] is acting in excess of jurisdiction by ordering the Family Consultant to apply the repealed from Family Law Act 1995 (Cth) “Friendly Parent Provision” in Order 13(g). Order 13(g) Each parent’s attitude to…the other parent… s7 Acts Interpretation Act 1901 (Cth) requires observations of the repeal, meaning and reasons of repeal. The Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018 Explanatory Memorandum details why this has been removed and the Court is mandated to follow it. It states:
a) Item 18: Paragraph 60CC(3)(c)
Item 18 repeals paragraph 60CC(3)(c) of the Act and replaces it with new paragraphs 60CC(3)(c) and (ca).
b)Current paragraph 60CC(3)(c) is commonly referred to as the ‘friendly parent provision’. This provision required the family courts to consider the willingness of one parent towards the other in facilitating a child’s relationship with other parent. The AIFS Evaluation of the 2006 Family Law Reforms and the Family Law Council report to the Attorney-General, Improving responses to family violence in the family law system, noted the impact this provision had in discouraging disclosures of family violence and child abuse. These reports indicate that parties were not disclosing concerns of family violence and child abuse for fear of being founds to be an ‘unfriendly parent’.
c)The repeal of paragraph 60CC(3)(c) is intended to remove this disincentive and enable all relevant information to be put before the courts for consideration in making parenting orders. Removal of the ‘friendly parent’ provision will not prevent the court from considering a range of matters relevant to the care, welfare and development of the child such as a parent’s attitude to the responsibilities of parenthood.
(Applicant’s affidavit filed 15 June 2023) (As per the original)
131.On 25 May 2023 [the Registrar] ordered the Family Report for him in order to create evidence and fabricate justification for removal of the children from me and giving them to the Father despite very clear evidence of risk of sexual abuse and an affidavit filed 24 May 2023 which [the Registrar] removed from the system which showed risk of sexual harm to [the child]. [The Registrar] for the Family Report ordered the Family Report Writer to consider the extent to which each party facilitates a relationship with the other parent. That is the repealed friendly parent provision. The Family Report Writer was given a requirement by [the Registrar] to investigate a clause that was removed over 10 years ago under the Act and you cannot reenliven it. The Family Report is therefore in line with the repealed friendly parent provision which is a reason why it must be struck out.
(Applicant’s affidavit filed 28 July 2023) (As per the original)
However, such evidence was mistaken. By Order 13(g), the Family Consultant was instructed to address “each parent’s attitude to the children and the other parent and to the responsibilities of parenthood”, which is a direct reference to s 60CC(3)(i) of the Act, not to the now repealed sub-section to which the applicant refers.
The applicant also complains that the primary judge failed to determine her application to discharge Order 13 and thereby “refused to consider the matter at all” (Applicant’s affidavit filed 28 July 2023 at [83]–[87]), but that is not so. The dismissal order plainly represents the determination of her application, even if the applicant is dissatisfied with the result. The applicant enjoys no right of veto over the Court’s exercise of wide power under s 62G of the Act to procure a Family Report for use as evidence in the proceedings. Any dissatisfaction she has with the content of the Family Report may be expressed through her cross-examination of the Family Consultant and the submissions she makes at the upcoming trial.
No evidence at all was led by the applicant in respect of Orders 14–20. It must therefore follow that, if Order 13 was regularly made, there were no grounds upon which the primary judge ought have discharged Orders 14–20.
The grounds of appeal which the applicant relevantly intends to prosecute are these: the primary judge erred in finding the applicant had not advanced submissions to discharge Order 3, when she actually had (Ground 6); the primary judge failed to exercise discretion in the review hearing by failing to discharge Order 13 (Ground 2); and the primary judge erred in failing to discharge Order 13(g), which order calls for the expression of an impermissible opinion on an irrelevant consideration (Ground 15).
Ground 6 must fail because, even if the asserted mistake was made, Order 3 only repeats the embargo which exists under r 15.23 of the Rules, making the error immaterial.
Ground 2 must fail because discretion was exercised by the primary judge, the product of which exercise was the order dismissing the application to discharge Order 13.
Ground 15 must fail because Order 13(g) correctly instructs the Family Consultant to address, by an opinion expressed in the Family Report, s 60CC(3)(i) of the Act.
Dismissal of the application for ancillary orders
The second dimension to the primary judge’s order was its dismissal of the application for the suite of additional orders in the review hearing, which may be summarised in this way:
(a)the application for the summary grant of the parenting relief sought by the applicant under Pt VII of the Act, which application for relief is due to be heard at trial in August 2023 (proposed Order 1);
(b)leave for the applicant to issue subpoenas compelling two members of federal parliament and a judge of the Federal Court of Australia to give evidence at the trial of the proceedings between the parties (proposed Orders 4–6); and
(c)leave for the applicant to cross-examine each of those three witnesses at trial (proposed Order 7).
The applicant sought such relief in the review hearing, even though the application for such relief was entirely fresh and not made before the registrar at the hearing on 25 May 2023. That of itself was irregular, because on 28 June 2023 the primary judge was only conducting a hearing to review the registrar’s orders in limited respects.
Nonetheless, the only evidence led by the applicant which is relevant to her application for the summary grant of final relief under Pt VII of the Act was this:
5.I seek the Orders as sought in my Amended Response to Initiating Application and Response to Initiating Application.
6.[The child] must be returned now. The evidence is clear about the risk to [the child] in the care of the Father. I’m entitled to the benefit of the Orders under Aldridge and Keaton.
7.The Father admitted in his filed Initiating Application and Notice of Risk in February 2023 that he has no reasonable excuse to withhold [the child] from me pursuant to s70NAE and [the child] needs to be returned immediately.
(Applicant’s affidavit filed 15 June 2023) (As per the original)
Such untested evidence could not possibly have warranted the grant of summary relief to render the upcoming trial otiose. The father is vigorously contesting the parenting proceedings and it could not be concluded on the above evidence that the father’s application for final relief has no reasonable prospects of success so as to justify the grant of summary relief in the applicant’s favour pursuant to s 46 of the FCFCA Act or s 45A of the Act.
The only evidence led by the applicant in respect of her application for the orders permitting her to issue subpoenas to and her cross-examination of the judge and members of parliament was this:
8.I seek an Order that subpoenas be granted for the giving of evidence on the witness stand of [two members of federal parliament] and [a judge of the Federal Court of Australia].
9.I seek an Order that the Mother be permitted to full cross-examine [two members of federal parliament] and [a judge of the Federal Court of Australia] in relation to their expertise, knowledge and reports in relation to the effectiveness and failures of the Family Court, given they haven’t given affidavits to the Court.
(Applicant’s affidavit filed 15 June 2023)
79.[A judge of the Federal Court of Australia] in her ALRC Report said family report writers are not accredited, and they are not trained. They therefore cannot be experts. The Court has a duty to determine whether an “expert” is an expert.
(Applicant’s affidavit filed 28 July 2023)
In light of the Court’s wide powers to restrict the evidence adduced in parenting proceedings (s 69ZX(1) of the Act; s 69(2) of the FCFCA Act), the dismissal of the applicant’s application for those orders on such sparse evidence was hardly exceptional. In any event, the decision to dismiss that aspect of the applicant’s application was only a procedural ruling and not a “judgment” which is amenable to appeal. Judgments do not include rulings on points of law, evidence or procedure which incidentally arise during the proceedings when such rulings are not decisive of legal rights (Commonwealth v Mullane (1961) 106 CLR 166 at 169; Yule v Junek (1978) 139 CLR 1 at 14, 18, 21 and 26). Indeed, no proposed grounds of appeal address the dismissal of the applications in respect of the subpoenas and the cross-examination.
The only ground of appeal which the applicant relevantly intends to prosecute is that the primary judge erred by implying in the reasons for judgment that the grant of a recovery order for the child, which comprised part of the applicant’s application for summary judgment in the cause under Pt VII of the Act, lacked any utility (Ground 11).
What his Honour actually said in the reasons was this:
20.The mother sought recovery orders. That should be determined at trial. The trial is only a few weeks away. Further, if the mother presses for recovery orders ahead of the trial, she can bring that application before [the trial judge] on 5 July 2023.
As already noted, at the time of the review hearing, the trial was only two months away. It is even closer now. There was no evidentiary basis which properly enabled the primary judge to summarily grant the applicant judgment under Pt VII of the Act in the terms she sought. The ground of appeal has no reasonable prospect of success.
Miscellaneous grounds of appeal
The other grounds of appeal the applicant intends to prosecute, if granted leave to do so, bear no apparent relationship to the dismissal order made on 3 July 2023 and the work done by it.
Such grounds include assertions that:
(a)the primary judge erred at law by failing to observe his Honour’s judicial oath of office (Ground 1) – which assertion is specious;
(b)his Honour was actually or ostensibly biased (Grounds 4, 5 and 7) – which complaints did not found any disqualification application at the time of the hearing before the primary judge and appear to arise merely as a consequence of the applicant’s dissatisfaction with the primary judge’s decision and reasons for judgment;
(c)the primary judge “doctored his orders” (Ground 12) – which assertion is specious;
(d)his Honour committed a criminal offence (Ground 14) – which assertion is specious;
(e)his Honour failed to apply certain provisions of the Criminal Code Act 1995 (Cth) (Ground 3) – which is entirely misguided, since the primary judge was exercising jurisdiction in only a civil cause of action;
(f)the primary judge erred by not making orders about alleged contraventions of orders (Grounds 8, 9 and 10) – which is misguided because none of the registrar’s orders under review concerned any contravention application and none of the supplementary orders sought from the primary judge concerned a contravention application; and
(g)the primary judge did not apply the paramountcy principle (Ground 13) – which is also misguided because, aside from the application for summary judgment which was bound to fail for the reasons already given, the primary judge was not exercising any discretion under Pt VII, Div 6 of the Act.
CONCLUSION
The proposed appeal lacks “reasonable ground” because it is misconceived. It is therefore vexatious (s 102Q(1)) and the application for leave to bring it must be dismissed (s 102QF(2)).
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Harper and Campton. Associate:
Dated: 9 August 2023
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